A criminal defense attorney and a police officer walk into a bar

Not a day goes by that a criminal defense attorney and a police officer are questioned for an interpretation of the law. The outcome will vary depending on who you talk to.

I have been practicing law since late 2004 and shortly through my career I made the decision to enter law enforcement to not only serve my community but also see for myself what it was like to put on a uniform. I continued to practice as a criminal defense attorney while I was in law enforcement. The running joke was if I would hand someone my card after arresting them.

One of my most vivid memories was my first day in uniform. I was inside of Home Depot with my training officer as part of our daily patrol. As we walked about the store, I noticed that I was no longer inconspicuous. When you put on a uniform it is much like a wearing a giant beacon that attracts the good and the bad. People would thank us for their service, briefly stare or walk the other direction. With this attention came great responsibility, we were expected to know what to do and be professional about it.

This is not much different as my experience as an attorney when I am in the courthouse. When I am in the courthouse departments that handle criminal matters I often get questioned. Our society trusts both attorneys and police officers to not only keep us safe but provide a reliable interpretation of the law.

Attorneys and police officers are more approachable when in a social environment. It is common to get into a conversation with someone that possess a hypothetical question or an actual event. I want to share with you some of the common topics and questions that I have had with strangers and friends.

Why do many police officers appear impersonal and indifferent?

The reason for this question is because of a bad experience. Many of the officers that I know are wonderful people with great humor and compassion, but it gets masked when they are on duty. It all comes down to training. An officer must go through a lengthy academy training where they not only learn the various laws and how to look for those that violate them, but also how to stay alive. The number one goal for an officer each time he or she puts on a uniform is to go home safe at night. To go home safe at night, an officer is trained to act with authority and command presence.

One of the first things we learned in the academy was what is called an FI (Field Interview) Stance. An officer’s personal bubble is much greater when they are in uniform. While interacting with the public we were taught that a person can attack and seriously injure or kill us within 15 feet before we had an opportunity to react and defend ourselves. The tools accessible to an officer are not instantly deployed, they take time to un-holster and properly discharge.

An officer is also trained that he or she is a dangerous weapon if incapacitated. If a suspect gets ahold of his or her gun, then not only is that officer in danger but the public as well.

Another reason an officer may appear distant while on patrol in the streets or dispatched to a location is because they have a job do. The initial goal when interacting with the public is everyone’s safety. Officers are trained to first assess any possible threat and diffuse it. This diffusion comes with verbal commands such as having someone stand or sit in a certain location, a pat down search or simply keeping hands out of pockets. Being cordial does not always work.

Once a scene is secured, you need to remember that they only have a limited amount of information of what has occurred. They must properly investigate by gathering information from an objective perspective. I once went to a call of a woman with a firearm threatening people. After we were able to contact her and determine that there was no immediate threat we learned that she was the victim. Her estranged husband was hopeful that by calling the police we would arrest her after she was only trying defending herself. We learned that several weeks prior he had ripped her lip off with his teeth, which is the crime of mayhem. We didn’t know who was a threat until we had secured the scene first. Ultimately, he was arrested and charged. Had we not taken our time to sort everything out, something would have been missed or someone hurt.

Why does someone who gets drunk behind the wheel and kill someone receive a shorter prison sentence versus a crime that didn’t result in death such as rape or kidnapping?

We are a society with laws that consider both the Actus Reas and the Mens Rea. The Actus Reas, is the act itself, such as the driving or the shooting of a gun. This act must be volitional, which means that you intended to take the car down the road or pull the trigger. The Actus Reas is often easier to prove than the Mens Rea. The Mens Rea is the intention or knowledge of wrongdoing. You may have intended to drink and drive and get home in one piece but not kill someone in the process. You should have known better, but you didn’t specifically intend for someone to die. If you point a gun at someone, it is presumed that you intended not just to fire it but also harm another. Since one’s Mens Rea was not to harm or kill someone we don’t punish them as severely as those that intended to do so. Like it or not, we are not a country with laws that follow the principle of an eye for an eye.

If the police already have my admission does my case have a chance?

Defense attorneys will use what is called the “fruit of the poisonous tree” argument. Without boring you with a semester worth of law school, it basically means that any evidence such as statements or the “smoking gun” that are acquired after a violation of your Constitutional Rights is inadmissible. These violations occur in a multitude of ways. The most commonly referred to but misunderstood violation is your Miranda rights.

“I wasn’t read my rights.”

I often hear this from clients. They feel that because of this, they have a solid defense. Your 5th Amendment Miranda Rights are important but when and how they are given is the key to a successful defense. The technical terminology from the United States Supreme Court case Miranda vs. Arizona is long but the key terms are a custodial interrogation by police that is likely to elicit an incriminating response.

A casual conversation between you and an officer does not require a reading of your rights and is not considered custodial. If you ever want to know if you are in custody, simply ask the officer, “Am I under arrest and can I go?” If you are not free to leave, you have an argument that you were detained against your will and in custody.

Once an officer believes that you have committed a crime and you are not free to leave, the questions that follow must be done so after you are read your rights. If the officer does not ask you any questions, then your Miranda rights are not required. If you decide to run your mouth because you are nervous, upset, intoxicated, angry or defensive you are out of luck. Officers don’t need to Mirandize you to conduct an observation of your behavior, such as your unsteady balance, an odor of alcohol from your breath or body and so on. It is important that you keep your body language to a minimum.

Don’t Lie – “These aren’t my pants.”

If you choose to engage in conversation with an officer, don’t lie. Lying is the biggest way to upset an officer. You need to remember that they are people to and nobody likes someone lying to them. They take it more personally than anything else. Lying and getting away with it isn’t as easy as you think. Every officer is lied to on a regular basis and they have heard almost everything. They become very good at detecting what is true and what is false, especially when they have heard it before such as, “These aren’t my pants.”

An officer’s best tool is being able to communicate with people and getting what they need just from a conversation. Their job is a lot easier when they can get a confession. The most common lie told is, “a couple of drinks,” at a detention for DUI. Admitting to an officer that you had any alcohol at a DUI detention is bad enough but lying about how much you had to drink when the signs show otherwise make it worse. I know it is hard to keep your mouth shut because we want vindication. If you feel compelled to lie, just keep your mouth shut.

Can the police lie to me?

Yes, they can, but with limitations. It is very normal to feel compelled to admit to an officer’s request about your activities with the hope that honesty will keep you from being cited or arrested. Even if an officer tells you that there is nothing to worry about, keep your mouth shut. I had a client that was charged with Hit and Run. He rear-ended someone, stopped briefly, inspected the car without discussion with the other driver, saw no damage and left. He was later detained and admitted to driving only after the officer told him he had nothing to worry about. His statements were admissible, and the officer’s promise was not binding. Police officers do not have the authority to make deals when it comes to misdemeanor or felony violations.

“I did all the field sobriety tests but the PAS”

By the time the officer asks you to blow into his or her little machine called a PAS (Preliminary Alcohol Screening) device, he or she likely has enough to arrest you. Don’t ever think that the PAS device is the definitive field test to determine your sobriety. From the second an officer makes contact with you, you are giving off clues as to whether you are impaired. It starts with your driving, followed by contact at your driver side door with odors and slurred speech that leads to field sobriety tests. The final test often being a PAS.

You are allowed to refuse the PAS along with all the other tests if you are not on probation and over 21. You may also refuse the forensic test of blood or breach which is different from the PAS, but it does not come without consequences.

The breath machine, or Intoxilyzer, is a more elaborate machine than the PAS and often located at the jail or police station. that you blow into. The alternative forensic test is having your blood drawn by a phlebotomist. In short, your license will be suspended is you refuse after being lawfully arrested for DUI and they will force it from you anyway with a warrant. The most common length of suspension by the DMV for a refusal is one year.

Why was I punished differently than my friend for the same crime?

You may have committed the same crime as someone else, but your punishment will not always be the same. First and foremost, punishment will vary depending on the other factors in your life prior to and after your actions. Here is a small list of things that the court considers when sentencing you.

Criminal History: Having a criminal history is the most obvious. If you have committed the same crime before, things won’t turn out so well. The court will consider the amount of time between crimes.

Behavior Modification: Getting help is not an admission of guilt. The court wants you to live a healthy and fulfilling life. Getting help includes educating yourself with a diploma, degree or certification as well as seeking counseling for addictions.

Location of Arrest: If you are guilty of a DUI in Orange County you are likely to be sentenced to only three years of probation versus five in San Diego County. Some communities have more impaired drivers and they want to take the extra effort to discourage that behavior. The problem is, most people don’t know the repercussions of DUI beyond fines and license suspension until after they are arrested and charged.

Date of Arrest: Each year the courts are getting tougher and tougher on some crimes and easing up on others. The days a slap on the wrist for drinking and driving are long gone. Possession of marijuana is now allowed.

BAC Level: The terms of your punishment for a DUI are mostly decided by the level of your blood alcohol content. Someone with a .10 BAC versus a .22 will have very different results. The more you have in your system, the court will order more days of public work service, a longer driver alcohol education program and the installation of an ignition interlock.

Conclusion

Life is too short to not take full advantage of it, but it can be done so with responsibility. Get a ride home after a night of drinking. Be courteous to police officers. It will go a long way but at the same time be properly informed of your rights. I am hopeful that this article was helpful but be sure to talk to your attorney for clarification. If you have questions, don’t hesitate to politely ask an officer on the street or a lawyer you see in court. Don’t be surprised if you get a different answer to the same question.